The Law Office of Kurt H King

September 5, 2018

Missouri’s Whistleblower Law Applies Only to At-Will Employment, and Not Where Contract Provision Limits the Employer’s Right to Discharge/Terminate

Filed under: Employment Discrimination, Retaliation, Whistleblowers,Employment--Retaliation, Discrimination,Litigation,Uncategorized — kurthking @ 8:02 pm
Tags: , , , , , , , , ,

Missouri’s new (08.28.2017) Whistleblower Protection Act, 285.575, RSMo, states that it ‘is intended to codify the existing common law exceptions to the at-will employment doctrine,’ ‘limit their future expansion by the courts,’ ‘and provide the exclusive remedy for any and all claims of unlawful employment practices.’”

The words of  the WPA limits its application to “at-will” employment.  What about cases where there a contract provision limits the reasons for which an employee may be lawfully terminated?  Does the WPA apply to wrongful termination for violation of public policy in a contract setting?  Apparently not.

Where a contract limits the reasons for which an employee may be discharged, the employment is not at-will in that regard.  When a labor agreement or other contract (Corporate Integrity Agreement?) prohibits retaliatory firing of an employees in violation of public policy set forth by constitution/statute/regulation, the employment is not at-will and the WPA should not apply. 

Missouri courts have long so held that employment is not at-will where “there is a contract “pertaining to the duration of the employment or limiting the reasons for which the employee may be discharged . . . .”  Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo. 1965) (suit against railroad for breach of union contract); Williams v. Kansas City Public Service Co., 294 S.W.2d 36, 38 (Mo. 1956) (count II against Anheuser-Busch for breach of collective bargaining agreement).

More recently, the Missouri Supreme Court recognized this distinction in Keveney v. Missouri Military Academy, 304 S.W.3d 98, 103 (Mo. banc 2010), where it extended the claim of wrongful discharge in violation of public policy to cover contract employees (a teacher), in addition to at-will employees.

In short, the new whistleblower law should apply only to at-will employees, not reaching claims for wrongful discharge in violation of public policy where a contract limits the employer’s right to terminate an employee.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Retaliation & Discrimination, Litigation, General Matters

 

Reverse False Claims Act Case

Filed under: Employment Discrimination, Retaliation, Whistleblowers,Employment--Retaliation, Discrimination,Litigation,Uncategorized — kurthking @ 7:31 pm
Tags: , , ,

Boise v. Cephalon

Courts have allowed individuals who were not a party to a CIA to file civil lawsuits for breach of Corporate Integrity Agreements.  These cases are known as “reverse False Claims Act” actions.  See Boise v. Cephalon, Case 2:08-CV-00287-TON (E.D.Pa. July 21, 2015 Memorandum and Order denying motion to dismiss, Judge O’Neill). 

In Boise, three former employees of Cephalon, a pharma company under a CIA, sued claiming the company breached its CIA by falsely certifying that it had ceased off-label promotion of its drugs.  The employees claimed off-label promotion continued on after Cephalon’s $425 million settlement with the government in 2008 for off-label promotion.  The court overruled Cephalon’s motion to dismiss, allowing the employees to proceed with their reverse FCA claims.

This case may give traction for plaintiffs claiming to be third-party beneficiaries of a Corporate Integrity Agreement or other contract.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Retaliation & Discrimination, Litigation, General Matters

Third Party Beneficiaries in Missouri–Pharmaceuticals and Corporate Integrity Agreements

Filed under: Employment Discrimination, Retaliation, Whistleblowers,Employment--Retaliation, Discrimination,Litigation,Uncategorized — kurthking @ 5:04 pm
Tags: , , , , ,

Under Missouri law, persons not a party to a contract may sue for breach of that contract where the parties to the contract intended the party performing the contract (the promisor) have a duty to third parties.  The intent of the parties to the contract is key:

“The question of intent is paramount in any analysis of an alleged third party beneficiary situation.

*                                  *                                  *

The intent necessary to establish the status of a third-party beneficiary is “not so much a desire or purpose to confer a benefit on the third person, or to advance his interests or promote his welfare, but rather an intent that the promisor assume a direct obligation to him.”

Laclede Inv. Corp. v. Kaiser, 596 S.W.2d 36, 41 (Mo. Ct. App. E.D. 1980), citing Stephens v. Great Southern Savings & Loan Assn, 421 S.W.2d 332 (Mo. Ct. App. S.D. 1967).

“The intention of the parties is to be gleaned from the four corners, and if uncertain or ambiguous, from the circumstances surrounding its execution.”  Drury Company v. Missouri United School Insurance Counsel, 455 S.W.3d 30 (Mo. Ct. App. E.D. 2014) (upheld subcontractor’s right to sue, as an intended beneficiary, an insurer on its property damage policy issued to the owner of property).

“Although it is not necessary that the third party beneficiary be named in the contract, the terms of the contract must express directly and clearly an intent to benefit an identifiable person or class.”  L.A.C. ex rel. B.C. v. Ward Parkway Shopping Center Co., 75 S.W.3d 247, 260 (Mo. 2002) (young girl raped at mall sued security company for breach of its contract with the mall; held she may do so as an intended beneficiary of the contract).

The Third Party Beneficiary doctrine may apply in many different situations.  For example, a Corporate Integrity Agreement (CIA), between the pharma company and the government requiring reporting of non-compliance with  laws and regulations, may well protect the employees from retaliation for such reports and for participating in investigations regarding those reports.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Employment Retaliation & Discrimination, Litigation, General Matters

Blog at WordPress.com.